Administrator, Transvaal, and Others v Theletsane and Others

• Jurisdiction: South Africa
• Citation: 1991 (2) SA 192 (A)

Administrator, Transvaal, and Others v Theletsane and Others
1991 (2) SA 192 (A)

1991 (2) SA p192

Citation	1991 (2) SA 192 (A)
Court	Appellate Division
Judge	Botha JA, Smalberger JA, M T Steyn JA, F H Grosskopf JA and Nicholas AJA
Heard	November 5, 1990
Judgment	November 30, 1990

Flynote : Sleutelwoorde G

Practice — Applications and motions — Dispute of fact — When H applicant entitled to make out case for relief on respondent's affidavits — Respondent required to meet only those specific allegations of fact put forward by applicant and not to anticipate and counter possible unstated contentions — Where respondent chooses to go further than necessary in answering issues raised by applicant, it I cannot be said a priori that respondent not prejudiced if its own affidavit is relied upon to determine whether applicant entitled to relief — Not permissible to consider respondent's affidavits in isolation from context of case respondent is answering — To do so tantamount to reversing onus — Room for deciding matters of fact on basis of respondent's affidavits, where such affidavits deal with facts J not put forward directly in answer to

1991 (2) SA p193

A factual grounds for relief on which applicant relies, very small, a fortiori where respondent's affidavits deal equivocally with such facts — In dealing with equivocality of contentions in respondent's affidavits, not permissible to base factual findings regarding such contentions on mere weighing up of probabilities. B

Headnote : Kopnota

The first and second respondents (as applicants) sought an order in a Local Division against the appellants (as respondents) declaring that their purported dismissal from the employ of the Transvaal Provincial Administration had been unlawful. The issue was whether the Provincial Administration had complied with the audi alteram partem rule in dismissing the respondents. The respondents denied that they had been afforded a hearing of any kind at all, while the appellants in their affidavits chose to show not only (1) that the respondents had been C afforded a hearing, but also (2) that the hearing had been a proper and fair one. The respondents' foundational allegation (viz that they were afforded no hearing) formed no part of the grounds upon which they obtained relief in the Court a quo, which, having regard to the averments made by the appellants (together with such facts as were common cause), held that, although the respondents had indeed been given a hearing, it had not been one which complied with the requirements of D the audi rule. Nor did the respondents seek to rely on their foundational allegation on appeal: they contended that the matter could be decided on the appellants' affidavits and based their arguments on the premise that it appeared from those affidavits that the hearing did not comply with the audi rule.

Held (per Botha JA, M T Steyn JA, F H Grosskopf JA and Nicholas AJA concurring; Smalberger JA dissenting), that it was not for the E appellants to show that the respondents were given a proper hearing: they were called upon only to meet the specific allegations put forward by the respondents in support of the relief claimed. The appellants were required to answer a case founded on the allegation that the respondents were not given a hearing; they were not called upon in any other way to raise a valid defence to the relief sought.

Held, further, that it was not permissible to consider the appellants' affidavits in isolation, divorced from the context of the case they were F answering, and that to the extent that the appellants' affidavits went further than may have been necessary to answer the case as presented, it could not be said the appellants would not be prejudiced if their affidavits were relied upon to determine the nature and ambit of the hearing that took place: to do so would be unfair to the appellants and tantamount to reversing the onus.

Held, further, that the room for deciding matters of fact on the basis G of a respondent's affidavits, where such affidavits dealt with facts not put forward directly in answer to the factual grounds of relief on which the applicant relied, particularly where the affidavits dealt equivocally with such facts, as was the case in the instant matter, had to be very small, if it existed at all.

Held, further, as to the issue whether the audi alteram partem rule had been complied with, that it appeared from the appellants' affidavits that the respondents had been given the opportunity to make H representations, but it was not clear from these affidavits whether this opportunity had been expressed to be an unlimited one embracing all reasons why they should not be dismissed, or a restricted one confined only to reasons as to why they stayed away from work. This ambiguity made it unfair to the appellants to decide the case against them purely on their own affidavits.

Held, further, that in dealing with the equivocality of the contentions I in the respondent's affidavits, it was not permissible to base factual findings regarding such contentions on a mere weighing up of the probabilities.

Held, further, that inasmuch as there was also nothing in the respondents' affidavits worthy of investigation by viva voce evidence, justice required that the application to refer the matter to viva voce evidence had to be refused. Appeal allowed.

The decision in the Witwatersrand Local Division in Theletsane and J Others v Administrator, Transvaal, and Others reversed.

1991 (2) SA p194

Case Information

Appeal from a decision in the Witwatersrand Local Division (Streicher J). Facts not material to this report have A been omitted from the judgments of Botha JA and Smalberger JA.

L S Weinstock SC (with him J J Wessels) for the appellants referred to the following authorities: Down v Malan NO en Andere1960 (2) SA 734 (A) at 742H - 743A; Colyvas v Valuation Court Pretoria and Another1961 (3) SA 41 (T) B at 51 - 2; Bregin and Another v Assistant Magistrate, Benoni, and Another1975 (1) SA 171 (W) at 174 - 6; Liassou v Pretoria City Council1979 (3) SA 217 (T) at 223E - G; Radloff v Clocolan Ko-Operatiewe Maatskappy Bpk1955 (3) SA 418 (A) at 423B; Volschenk v President, SA Geneeskundige en Tandheelkundige Raad1985 (3) SA 124 (A) at 140F - H; C Fernandes v South African Railways1926 AD 60 at 68 - 9; Jeewa v Dönges NO and Others1950 (3) SA 414 (A) at 422 - 3; Terblanche v Wiese en Andere1973 (4) SA 497 (A) at 505F - G; Heatherdale Farms and Others v Deputy Minister of Agriculture and Another1980 (3) SA 476 (T) at 486D; Dabner v SA Railways1920 AD 583; Barlin v Licensing Board for the Cape1924 AD 472 at 480; Steyn v City Council of Johannesburg 1934 WLD 143 at D 147 - 8; Baxter Administrative Law at 546; Minister of Law and Order and Another v Dempsey1988 (3) SA 19 (A) at 35D; Sisulu v State President and Others1988 (4) SA 731 (T) at 736D; Durban Rent Board v Edgemound Investments Ltd1946 AD 962; Johannesburg City Council v Administrator, Transvaal, and Mayofis1971 (1) SA 87 (A) at 99A; Estate Geekie v Union E Government and Another1948 (2) SA 494 (N) at 511.

I Mahomed SC (with him P M Kennedy) for the respondents referred to the following authorities: Mokoena and Others v Administrator, Transvaal1988 (4) SA 912 (W); Baxter Administrative Law at 416 - 17, 502 - 7, 544-5, 551; Northwest Townships (Pty) Ltd v Administrator, Transvaal, F and Another1975 (4) SA 1 (T) at 8D - G; Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another1988 (3) SA 132 (A) at 152C - E; Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another1980 (3) SA 476 (T) at 486D - G; Loxton v Kenhardt Liquor Licensing Board1942 AD 275 at 289 and 295; Sullivan v Wheat Industry Control Board 1946 TPD 194 at 206; Pretoria City Council G v Osman Omar (Pty) Ltd1959 (4) SA 439 (T) at 442A; Hopkins and Another v Smethwick Local Board of Health (1890) 24 QB 712; Urban Housing Company v Oxford City Council[1940] Ch 70 at 85; Fredericks v Stellenbosch Divisional Council1977 (3) SA 113 (C); Turner v Jockey Club of SA1974 (3) SA 633 (A) at 646F - H, 652 - 3; Ahmed Mahomed and Co v Balfour Village Council 1926 TPD 235 at 239; Marlin v Durban Turf Club H and Others1942 AD 112 at 126 and 128; Transvaal Indian Congress v Land Tenure Advisory Board and Another1955 (1) SA 85 (T) at 91; Swart v Minister of Law and Order and Others1987 (4) SA 452 (C) at 480C; Britten and Others v Pope1916 AD 150 at 171 - 2; Minister of Law and Order and Another v Dempsey1988 (3) SA 19 (A) at 35D - E; Johannesburg City Council v Administrator, Transvaal, and Mayofis1971 (1) SA 87 (A) I at 99A; Rose-Innes Judicial Review of Administrative Tribunals in South Africa at 132 - 3; Wade Administrative Law 6th ed at 411-12; In re Duma1983 (4) SA 469 (N) at 481; Agricultural Supply Association (Pty) Ltd v Minister of Agriculture1970 (4) SA 65 (T) at 69 - 70; Townships Board, Transvaal v Garner NO1961 (3) SA 437 (A) at 443; Mooragan and Sons v J Sugar Industry Quota Tribunal1962 (1) SA 109

1991 (2) SA p195

A (N) - see the headnote; Sisulu v State President and Others1988 (4) SA 731 (T) at 736D; Durban Rent Board and Another v Edgemount Investments Ltd1946 AD 962 at 974; Estate Geekie v Union Government and Another1948 (2) SA 494 (N) at 511; Swart v Vosloo1965 (1) SA 100 (A) at 112D - 113H; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd B 1984 (3) SA 623 (A) at 634E - G.

Cur adv vult.

Postea (November 30).

Judgment

Botha JA:

I have had the benefit of reading the judgment of my Brother C Smalberger. I respectfully disagree with him. For convenience, and to facilitate the writing of my judgment, I shall, in stating my views, frequently link them to the contrary views expressed by my Colleague, and in doing so I shall...